Who's to blame when you're injured by a defective product?
As you read this article, you're almost certainly surrounded by multiple products. Look around and it shouldn't take long to find a smartphone, computer, lamp, toaster, and television set. When driving around, you're also likely to see brown packages on doorsteps filled with more products being delivered to American homes.
In the modern world, it's a sad reality that we don't always expect our products to last or even to work well, but we generally count on them not to hurt us. Unfortunately, people are injured and even killed by defective products every year in the U.S.—including right here in South Carolina.
What is a product liability claim?
A product liability claim is a civil lawsuit alleging that a defective product caused harm to the plaintiff. South Carolina law recognizes 3 types of product defects:
| Type | Definition | Example |
|---|---|---|
| Manufacturing defect | A defectively manufactured product is one that—though properly designed—left the manufacturer in a condition other than intended. | A contact lens became tainted with silicone oil residue during the manufacturing process. As a result of the accidental contamination, users experienced severe eye pain and partial blindness. |
| Design defect | A product is defectively designed if it failed to perform as safely as a reasonable person would expect, even when used as intended (or at least in a manner that was reasonably foreseeable). | A toy was so sharp that most of the children who used the product seriously cut themselves on the product. |
| Marketing defect (failure to warn) | Manufacturers have a duty to warn users of the dangers that can be reasonably anticipated and that are inherent in their products. | The weed killer contained a carcinogen likely to cause cancer if handled without gloves, but the packaging failed to warn users. |
A product liability claim is a type of personal injury claim.
How do I establish a product liability claim in South Carolina?
Product liability claims in South Carolina can be based on either negligence or strict liability:
In a product liability case based on negligence, the plaintiff must prove that:
- The defendant owed the plaintiff a duty of care (manufacturers owe a duty of care to all potential users),
- The defendant breached the duty of care, and
- The defendant's breach caused the plaintiff's injuries.
In a product liability case based on strict liability, the plaintiff must prove that:
- The product was sold in an "unreasonably dangerous" condition,
- The unreasonably dangerous condition existed when the product left the defendant's control, and
- The dangerous condition caused the plaintiff's injuries.
Strict liability is typically the easier of the 2 legal theories to prove because the plaintiff doesn't need to establish that the defendant acted carelessly. With that being said, not all products are sold in an "unreasonably dangerous" condition.
Evidence typically used to establish a product liability claim includes:
- The defective product (or a similar product if the actual product is no longer available)
- The product manufacturing guidelines
- Video footage from the manufacturing plant
- Relevant internal communications (such as emails between designers discussing potential problems with the design)
- Incident reports
- Medical records
- Testimony from designers, manufacturers, witnesses, and others who can speak about the defective product
Who's liable if I'm injured by a defective product?
A product liability lawsuit can be filed against:
- Manufacturers. A manufacturer is an individual or entity that creates, assembles, constructs, or otherwise prepares a product or component before the sale to a customer.
- Sellers. A seller is a person engaged in the business of selling or leasing a product for resale, use, or consumption.
What if your neighbor sells you a defective refrigerator at a garage sale? Can you sue your neighbor?
Let's take another look at the definition of "seller." A seller is a "person engaged in the business of selling or leasing a product." This definition does not include casual sellers who may sell an item (such as at a garage sale or on Facebook Marketplace, for example) every once in a while to make a few extra bucks.
Casual sellers cannot be sued in product liability lawsuits in South Carolina.
Learn more about the 3M Combat Arms earplug lawsuits.
What are the common defenses to product liability claims?
In addition to alleging that the plaintiff was not actually injured by the product, a defendant may be able to raise a number of defenses in a product liability lawsuit:
- Substantial modification. This defense argues that the real cause of the harm was a substantial modification of the product (for example, the plaintiff replaced the engine on their go-kart with a more powerful engine).
- Misuse of the product. This defense claims that the real cause of the harm was an unforeseeable misuse of the product (for example, the plaintiff used Tannerite to blow up a refrigerator).
- Common knowledge. The defendant may try to argue that the plaintiff's injury resulted from a danger that is commonly known by the public.
- Federal preemption. A defendant who complies with federal laws and regulations when manufacturing its product cannot be liable under a South Carolina law that conflicts or interferes with those federal mandates.
- Statute of limitations. The plaintiff's claim may be barred if the claim is filed after the expiration of the statute of limitations.
Sylvester put the blade of the skidder against the tree. He then pushed the tree and James removed his chainsaw. However, the skidder's throttle stuck, causing the skidder to "surge forward out of control and to push over the tree." The tree struck and injured James.
James sued the manufacturer of the skidder, arguing that the skidder had a defect that caused the throttle to stick.
The manufacturer of the skidder argued that it should not be held liable because the skidder was misused at the time of the accident. However, the jury concluded that the manufacturer was liable because using a skidder to help remove a chainsaw stuck in a tree was common practice in the logging industry and, therefore, was foreseeable.
How long do I have to file a product liability claim?
Under South Carolina law, you must file your product liability lawsuit within 3 years from the date of your injury. If you fail to do so, your claim will be forever barred.
There are a couple of narrow exceptions to the statute of limitations. Because of these exceptions, it's a good idea to meet with an attorney as soon as possible to determine when you need to file your lawsuit.
How much compensation can I receive?
Though the exact settlement or award amount you may be eligible for depends on the unique factors and circumstances of your case, plaintiffs in South Carolina product liability lawsuits may receive the following types of damages:
- Economic damages include the monetary losses caused by the defective product (medical expenses, lost wages, property damage)
- Non-economic damages include the non-monetary losses caused by the defective product (pain and suffering, emotional distress, loss of consortium)
- Punitive damages are meant to punish the defendant and are only available in cases where the defendant acted willfully or recklessly
South Carolina adopted the modified comparative fault rule. Under this rule, the amount of damages a plaintiff can recover is reduced by their percentage of fault (if any). What's more, if the plaintiff is determined to be 50% or more at fault, the plaintiff is barred from recovering any damages.
Don't be fooled by online settlement calculators because the truth is it's impossible to know exactly how much compensation you will receive for your injury. Damage awards may be affected by a number of factors, including:
- Severity of the injury
- Strength of the evidence
- Credibility of the parties
- Likeability of the parties
- Age of the plaintiff
- Jurisdiction (some counties historically award more damages than others)
Do I need a product liability attorney?
Product liability cases can be complex. An attorney who specializes in defective product litigation can help negotiate a desirable settlement with sellers, manufacturers, and insurance companies, or take your case to trial if necessary. An attorney can also help defend you from claims of misuse or modification.
Most personal injury attorneys handle product liability cases. With that being said, it's important to ask the attorney you're considering hiring whether they have experience litigating cases like yours.
Personal Injury Attorney Interview Sheet
Worksheet with questions to ask a personal injury attorney to help determine if he or she will be a good fit for your case
Download in PDF format
Did you know that product liability law varies by state?
Need a lawyer?
What does an injury lawyer do?
A personal injury lawyer helps individuals who have sustained injuries in accidents to recover financial compensation. These funds are often needed to pay for medical treatment, make up for lost wages and provide compensation for injuries suffered. Sometimes a case that seems simple at first may become more complicated. In these cases, consider hiring an experienced personal injury lawyer. Read more